MCCoon v. Allen

• Decision Date: 10 June 1889
• Citation: 45 N.J.E. 708,17 A. 820
• Parties: MCCOON v. ALLEN.
• Court: New Jersey Supreme Court

17 A. 820

45 N.J.E. 708

MCCOON

v. ALLEN.

Prerogative Court of New Jersey.

June 10, 1889.

(Syllabus by the Court.)

Appeal from orphans' court, Monmouth county; WALLING BENNETT, Judge.

Joseph F. Randolph, for appellant. Robert Allen, Jr., and E. W. Arrowsmith, for respondent.

MCGILL, Ordinary. This appeal is from a decree of the orphans' court of Monmouth county, which admits to probate, as the last will and testament of William McCoon, two papers,—one bearing date on the 13th of February, 1869, purporting to be the will of William McCoon, and the other, bearing date on the 15th day of October in the same year, purporting to be a codicil to that will. Both papers appear to have been executed in compliance with the requirements of the statute. Their admission to probate as William McCoon's will is contested upon the grounds that McCoon lacked testamentary capacity, and, if that position should not be tenable under the proofs, that he was so unduly influenced to make the papers that they failed to express his will, and express the will of others. At the time the papers were executed the testator was about 50 years old. After their execution he lived 18 years, dying in December, 1887. He never married. For the 46 years immediately preceding his death he resided with his cousin, John Trafford,—from 1841 of 1857, in Trafford's father's house; and after 1857, in Trafford's own house. He and Trafford were nearly the same age. Their mothers were sisters. In 1848, upon the settlement of his father's estate, he became entitled to securities consisting of bonds and stocks valued at nearly $28,000, but suffered them to remain in the hands of his brother Cornelius, who had settled his father's estate, without making any attempt to take possession or control of them. He was then regarded in his family as feeble in mind, and incapable of managing his business matters. The widow of Cornelius McCoon says that he acted like a boy, could understand what he was told, but could not take care of his own affairs, and that her husband had attempted, by taking him into his store at one time, to teach him something about business, but failed to make him understand anything about it. William H. Townsend, a brother-in-law, who is named as one of the executors in the disputed will, and whose interest is naturally with the respondent, also says that William McCoon was not competent to manage his affairs as they should be managed. In 1863, some five years after he became entitled to the property in question, he transferred it to his brother Cornelius, his brother-in-law William H. Townsend, and one Benjamin G. Sherman, in trust to manage it, collect the income from time to time, paying so much of it to him as his necessities might require, accumulate the remainder, and at his death distribute the property, with its accumulations, among his next of kin, according to the statute of distributions in the state of New York. The making of this deed and the tenor of its recitals and provisions, notwithstanding the words that are employed in the instrument, are urged as evidence that at the time when the deed was made William McCoon was in a helpless and dependent condition. The deed recites that it was then "irksome and inconvenient" for him to bestow proper care in the management of his affairs, and makes provision for a time when, "from sickness or other cause," be may become "enfeebled or disabled in body or person so as to require attendance and care of his person," and for his protection from "casualties, accidents, events, and occurrences incident to life that may tend to impair or produce imbecility of mind," and from "the craft, control, and influence of others." It is urged that it was an instrument executed by a man in the prime of life, when he should be in the enjoyment of his greatest mental strength, for the purpose of irrevocably surrendering the control and disposition of his entire estate, and making provision against an apprehended future physical and mental impairment, and that consequently it cannot be looked upon, taking it in a light most favorable to its support, as less than a confession by all the parties to it of the grantor's deficiency and weakness. After this deed was executed Cornelius McCoon continued to manage the estate, thus put in trust, until 1865, when, because of his ill health, he transferred the management of it to his co-trustee and brother-in-law, William H. Townsend, who retained the trust property in his custody until William McCoon's death. In 1868, Phoebe and Amelia McCoon, two maiden sisters of William, died. From their estates he became entitled to a little more than $15,500. The securities in which these moneys were invested were transferred to William H Townsend, as the attorney of William McCoon, in January and March, 1869. On the 13th of February in that year the paper in contest purporting to be the will was executed. By that document Rachel, the wife of John Trafford, and Edwin S. and Frank W Townsend, the sons of William H. Townsend, are each bequeathed $5,000, and Margaret Trafford, the daughter of John Trafford, is bequeathed $500 out of the moneys received by the testator from the estates of his sisters Phoebe and Amelia. By the same instrument the testator's furniture is given to Rachel Trafford, his horse, wagon, and harness to John Trafford, and his gold watch to Margaret Trafford, and Rachel Trafford and the testator's nephews, Edwin S. and Frank W Townsend, are made the residuary legatees and devisees, and William H. Townsend, Edwin S. Townsend, and Robert Allen, Jr., are appointed the executors of the will. On the 15th of October in the same year the paper purporting to be a codicil to this will was executed. That document provides that, if Edwin S. and Frank W. Townsend, or either of them, should die before William McCoon, his or their share in the residuary estate shall go to William H. Townsend and Elizabeth, his wife, and that, if Rachel Trafford should die before William McCoon, her share of the residue shall go to her husband and daughter. When the will and codicil were made, the next of kin of the testator were his brother Cornelius, his sister Mary Ann McCoon, and his sister Elizabeth, wife of William H. Townsend. Thereafter, in 1884, Cornelius McCoon died leaving three children, James, who is the appellant in this suit, Anna, and Caroline; and Elizabeth Townsend died leaving two sons, Edwin S. and Frank W., above mentioned. By a writing, dated the day before the codicil to the will was made, William McCoon receipted to William H. Townsend for the $15,500 in his hands, and a few days thereafter Townsend paid that sum to some one, (whether it was to William McCoon or to some other person does not appear,) who divided it between Rachel and Margaret Trafford and the sons of William H. Townsend in the same proportions in which the will bequeathed it to them.

It is insisted that the Traffords and Townsends in concerted action, and with the assistance of Robert Allen, who was a cousin and the attorney of John Trafford, first procured the will to be made in their favor, and then the codicil, and, at the time the codicil was made, procured the division of the $15,500 among them, controlling William McCoon, and bending whatever will he had to their purpose, and that they then commenced, in the name of William McCoon, to question the trust-deed, with a view to have the residuary clause of the will ultimately determine the disposition of the trust funds. It is claimed that the principal actors in these proceedings were Elizabeth Townsend and Rachel Trafford, both of whom are dead, and Robert Allen, the respondent, and that with difficulty these persons induced William H. Townsend, who had custody of the $15,500, to acquiesce in their scheme. But little evidence can be had in support of this insistment, and that which is had is purely circumstantial. That the will and codicil were made in favor of the Townsends and Traffords, and that the $15,500 was divided among them, is clearly established, but as to the exact connection of William McCoon with that transaction the evidence is meager and unsatisfactory. As to his connection with the division of the money, the evidence is as follows: William H. Townsend produced William McCoon's receipt for the $15,500, and testified that he could not tell anything about the transaction to which it refers, except that the amount receipted for was paid. Edwin S. Townsend testified that he remembers nothing about the division, except that he received some money, amounting, according to his impression, to about $5,000, and that he was not present when the division was made. John Trafford says that he remembers merely the fact that the money was divided as indicated, some time in the fall of 1869; and Robert Allen swears that he has no recollection of the distribution having been made through him; that his impression is that it was made by the parties concerned in it; and that he does not remember that he consulted with Rachel Trafford or conversed with William McCoon about it. The proof, beyond the division itself, and this lack of memory upon the part of those who were concerned in it, which chiefly throws suspicion upon the transaction, is that which appears in two letters from Robert Allen to William H. Townsend. The first of these letters is dated at Red Bank, on October 21, 1869, at 11 p. M. In it Mr. Allen writes that it would not be necessary that William McCoon's receipt for the $15,500, which had been sent to Mr. Townsend, should be acknowledged or recorded, as it had been witnessed by a representative person of Red Bank. This letter was addressed to Mr. Townsend at his residence in New York city, in the care of Rachel Trafford. The second letter was written at 5 o'clock in the morning of October 22d, six hours later than the letter just referred to. By that letter Mr. Allen tells Mr. Townsend that he has advised Rachel to see him (Towns...